Bailouts: Italian Style

So in the US, we bail out the banks, the auto companies, the insurance industry... So what does the Italian government do? They bail out the Parmesan cheese industry!

Producers sought government help in the face of prices that have fallen some 25 percent over the past five years, said Giorgio Apostoli, who represents dairy farmers for the Coldiretti agriculture lobby. The producers faced pressure from distributors who offer sharp discounts on the grateable cheeses to lure shoppers into supermarkets

So thanks to the industry's lobbying power, at the expense of taxpayers the government will buy up 3 percent of annual production in an attempt to drive the price up. The official reasoning... to buy food in order to give to the poor. But of all the things you can do for a food program, the government decides to go with Parmesan cheese?

In reality, just as the auto companies come crying to the US government looking for money because they make inferior products that can't stand up to competition, so do the cheese makers. So instead of letting consumers purchase the cheese that they want to buy at the given market price, thanks to their elected officials, Italians will now have to use their tax dollars to make their cheese more expensive. Looks like lobbying power wins out again. Instead of spending the resources to innovate, cut costs or find some other way to compete in the marketplace, they instead decide it is worth while spending resources lobbying so the government can use other people's money to keep them in business, harming society as a whole. As Jeff Flake, one of the few Congressmen I actually like famously said, "I would argue this is one cannoli the taxpayer doesn’t want to take a bite of."

-EJB

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When I first read EJB's post, my immediate reaction was to begin my response with some tasteless ethnic jokes about Italians - seeing as both EJB and I are (at least half) Italian, and I figured I could get away with it. On second thought, this might not be the place for such offensiveness. Rest assured, my jokes would NOT have been about smelling bad and beating your wife...

Anyway, I had two non-offensive thoughts after reading the article. First, the Italian government's stated purpose for the "bailout" (they're actually just agreeing to buy one hundred thousand wheels of Parmesan) is that they will donate the cheese-wheels to the needy. So it's win-win; Parmesan cheese-makers get to stay in business and the poor get fed. But wait, they're giving Parmesan cheese to poor people? What are they supposed to do with it, sprinkle it on top of their non-existent soups, salads and all-you-can-eat breadsticks? Who gives someone a wheel of Parmesan cheese when they're hungry? I kind of find this cruel: "Oh you're out of money and starving? Here, have this 66 pound wheel of crumbly, foul-smelling curdled milk." Come on Italy, the last thing your hungry need is Parmesan cheese. Man up and confess that you're only doing this to bailout an important industry that probably donates money to Parliament members.

My second thought was the role the EU plays in the great cheese bailout. The article EJB links to mentions an EU program that is intended to help feed the hungry. It also implies that some of the bailout money will come from the EU itself. From what little I know about EU law (and believe me, I have a very limited knowledge of the black-letter law itself), EU monetary disbursements of this nature only go towards (or primarily benefit - again, I'm not completely sure of the legal language) foods or beverages which have been labeled with "Protected Designation of Origin" status. Sure enough, Parmesan cheese is just such an item. Thus, as European economies continue to stumble alongside ours, we can look forward to other wonderful EU bailouts of Asiago cheese, Champagne and - my personal favorite - "Melton Mowbray pork pies."
I would not eat that.
~JSK

So I'm Agreeing with Ralph Nader of all People... Sort Of

So putting aside the debate of to what extent global warming exists, to what extent human carbon emissions are causing it and to what extent mitigation of carbon emissions will lessen temperature change, I am going to assume for the sake of argument that we should indeed implement some kind of national system to reduce carbon emissions. I do this because this is the political reality we are currently in. With the current complying Congress, as soon as Obama and McCain were both nominated, this debate effectively came to an end, as both of these men are in favor of such a system.

With that said though now comes the debate over exactly how to go about doing this. On this topic, Ralph Nader has a very solid piece in the Wall Street Journal earlier this week in which I generally agree. There are essentially two big issues to still deal with in creating a system:

1.Unilateral Action vs a Global Scheme

One of the major problems with the Kyoto Protocol was that it only affected industrialized nations and exempted countries such as China, India and Brazil, the nations with the fastest growing output of emissions. In China’s case, it may actually outtake the US this year for the largest total emissions as well. So why was this bad? Is not getting some nations on board better then none? The problem is that any system that tries to mitigate carbon emissions does so by making the output of carbon more expensive or carbon producing activities more expensive. Therefore there is a substitution effect where firms that emit a lot of carbon simply move their facilities to a country like China that does not have restrictions. The end effect is no global reduction, just substitution, while at the same time deepening the trade deficit and destroying jobs in the developed nations. As Nader states:

Cap-and-traders assume, without much justification, that one country can put a price on carbon emissions while another doesn't without affecting trade or investment decisions. This is a bad assumption… Good intentions to limit big polluters in some countries but not others will turn any meaningful cap into Swiss cheese. It can be avoided by relocating existing and new production of various kinds of CO2-emitting industries to jurisdictions with no or virtually no limits…Because of the sheer scale of the challenge and the state of the hyperglobalized economy, we will need the same price on carbon everywhere, or it won't work anywhere.

This was one of the reasons why the US never signed onto Kyoto and up until last year, Australia didn't either. Doing so may have made a bunch of greens on the west and east coasts feel good about themselves that the US would be emitting less carbon, but all we would have done is export our carbon to other nations and destroy many Midwest factory jobs while we were at it. If there is going to be a carbon limiting system, it must be done on a global scale where virtually every country is on board and must include all the major industrial powers, including China, India, etc. The incoming administration and Congress would be unwise to rush a system into place in order to fulfill a campaign pledge if it is not done in tandem with some type of global arrangement.

2.Cap and Trade or Carbon Tax?

The vogue idea right now is to place a cap and trade system into place. The government will set some cap on the total amount of carbon allowed to be emitted across the economy and will give out or sell credits to various firms. The firms are then allowed to sell them to each other with the theory being that firms that can easily reduce emissions would rather sell the extra credits where firms were it is difficult to do so, will buy extra. This is designed to limit the economic damage of such proposals.

In theory this should work, but is has a tremendous amount of practical problems, that make a carbon tax more appealing. First, this will require a gigantic regulatory scheme and bureaucracy in order to orchestrate this massive planning endeavor. It would likely be very complicated and the cost burden both to the government and to private firms in implementing this would be heavy. As Senator McConnell stated, “This proposes to be the largest restructuring of the American economy since the New Deal.” A carbon tax is a lot more simplistic, applied at a few key areas of production, say at natural gas hubs, or refiners, etc, and then the tax cost will be passed down through the system.

Second, a cap and trade system would become a lobbyist’s paradise as every special interest will want some type of adjustment credit, exemptions, etc. Furthermore, members of Congress with given industries in their states will want exemptions for these firms and will be very happy to oblige to their lobbying power. Because the effective measuring of carbon output at virtually every stage of production is required for this to work, there will be tremendous wiggle room for special interest to effect how this is done so that it is done in their favor. Nader states:

…administering billions of dollars of carbon credits in a cap-and-trade system in an already chaotic regulatory environment would invite a civil war between interest groups seeking billions in carbon credit handouts and the regulator holding the kitty. By contrast, a uniform tax on CO2 emissions levied at a small number of large sites would be relatively clear-cut.

Lastly, a carbon tax is a lot more intellectually honest and straight forward to voters and consumers. Any restriction on emissions will increase the cost of goods to some extent. Whether this is done directly through a tax, or indirectly through cap and trade, it still has the effect of being a consumption tax. Lets then call it for what it is.. a tax. Just as we tax cigarettes in order to dissuade that behavior, but it makes that behavior more expensive for those who still indulge, taxing carbon works in the same manner.

To effectively put in place a cap and trade system, it would require a gigantic federal bureaucracy and one that every political group will wish to fight over for its control, destroying the original intent of the program in the first place while just giving us more ineffective large government.

-EJB

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Let me begin by addressing the issue that EJB neatly puts aside in his first paragraph; I'd like to just briefly touch on the global warming idea because it is obvious that my colleague reserves some doubt regarding its truth. The problem, of course, is the idea behind a "consensus." The best way to criticize a position or theory, regardless of the substance of that theory, is to claim that there is no scientific consensus surrounding its validity. This is obviously because the scientific community is a very large group of people and, quite likely, there will be dissenters. Now, some have claimed that there is a consensus as to human exacerbation of global warming (but, as is clear, there are respected scientists who do not agree). My point though is that consensus should not be the standard by which we evaluate the legitimacy of certain claims. If we did, we would have to seriously doubt evolution and certain precepts of non-Newtonian physics (after all, there are people in the scientific community who would strenuously disagree with those theories). Asking for total agreement on an issue is simply too high a burden. But when the US National Academy of Science and the American Association for the Advancement of Science both claim a relative "consensus" on the issue, I am willing to lend them credence because they really have nothing to personally gain from public belief in those statements.

The Kyoto Protocol is a solid first step towards reducing global carbon emissions because it strengthened and legitimized (as a global concern) the idea that we can help reduce global climate change. EJB's point - that it will not sufficiently or efficiently reduce those emissions because major CO2 producing countries are omitted - is well taken; however, it might be asking too much to posit that the United States should not move forward with carbon reducing initiatives until the point at which everyone in the global community is similarly acting. Negotiating within the global community is extremely difficult because of the large number of nations we would be dealing with. The more parties you enter into negotiation with, the more transaction costs each party incurs. Thus, if we were to hold, as domestic policy, that we would not initiate CO2 reduction plans until the world decided to work in tandem with us, we would be waiting a very long time - not a good move for the world's leading CO2 emitter (though not for long, thank you China).

I would also point out that Nader's argument - as with any good economic argument - is valid only because he restricted the scope and frame of his inquiry. This is the key to winning any good economic or legal battle. While it is true that anti-climate change initiatives would increase operating costs for businesses, corporations are incentivized to relocate their factories elsewhere only if all other conditions are assumed to be equal. To argue, as Nader does, that Company X will simply move to China if we institute a CO2 tax because China does not have one and thus they will save money only makes sense if there are no other better reasons for staying in the United States. We do not hear much about this question and there is no empirical data that I can find which supports the theory that carbon taxes will significantly increase the outsourcing and relocation of American business.

As for the debate over cap-and-trade vs. a carbon tax, I must say I haven't had the opportunity to fully consider either option. EJB (sharing Nader's concerns) seems to argue that we should favor a carbon tax simply because the cap-and-trade method would necessitate the creation of a large bureaucratic system. Perhaps. However, there is reason to believe that cap-and-trade systems need not be plagued with the necessity of creating new bureaucratic institutions. Such a system already exists for the attempted control of acid-rain.

This interesting op-ed piece further suggests that cap-and-trade would work more efficiently than a carbon tax. The author notes the cap-and-trade system already in place within the US for controlling the creation of acid-rain - and that this system has worked astonishingly well. The author also responds to EJB's second argument (regarding the likelihood of special interest lobbying and hand-outs) by noting that taxes, too, are susceptible to exemptions and special treatment of certain groups. This seems patently obvious - interest groups are hard at work attempting to secure tax breaks and reductions for their clients. The major thrust of the argument, and the important policy difference illuminated by the juxtaposition of the two systems is this:

But the key difference between a carbon tax and the cap-and-trade approach comes down to the issue of certainty. A tax provides for cost certainty; the cost is fixed because of the tax. Cap and trade, on the other hand, provides for environmental certainty. What's fixed is the cap itself -- and it is based on an assessment of the level of emissions you need to get to in order to protect the climate.

While the carbon tax may be more "intellectually honest" - and by that I assume EJB means something along the lines of "easier for businesses to calculate and foresee their expenses" - the cap-and-trade system better works to protect the environment by definitively limiting the amount of carbon our country emits.

~JSK

Goodbye Gitmo?

In an interview with CBS on 11/16, President-elect Obama maintained his position that he would close the detainee camp at Guantanamo Bay soon after taking office. He reiterated that the move would work to "regain America's moral stature in the world." Perhaps. I think it's clear, though, that there are other reasons for closing Gitmo that strike most people as rather self-evident: a symbolic departure with the Bush Administration's handling of the "war on terror," an attempt to end foreign pressure regarding torture and illegal detention, a need for increased transparency into the actions of the Executive branch. These are all well and good - but I just have to ask...maybe this is coming a bit too soon? I thought I was crazy when, a few weeks ago, I suggested to EJB that we develop a debate case centered on the theory "Obama should not close Gitmo within his first 100 days." The move just seems so morally justified. Thankfully, I've confirmed that I am not crazy - others are just as concerned as I am.

Here.

There are a few concerns I'd like to just mention, but, considering length constraints, I'd rather not fully develop arguments for any of them.

First, where will you put the detainees? Domestic prisons will absolutely refuse to accept terrorists amongst their ranks. NIMBY is one reason. Concern over increased prison violence is another.

Second, what of the 100 or more detainees who are still proclaiming to be hostile to the United States? We can't simply deport them - they'll immediately rejoin the ranks of al Qaeda and take up arms against us.

Third, what of the 150 or more detainees who are NOT hostile to the United States, but cannot be deported to their home States? This is a weird concern because the options are 1)continue to illegally detain a non-hostile innocent; or 2) ship the non-hostile innocent back to a country like Syria or Iran where he is wanted and will likely be tortured or executed. Which option is best for the individual's well-being? Do we have the right to act so paternally? What of those detainees whose home country no longer exists and whom no other country is willing to accept?

Fourth, under what system are we to try those who are triable? If we try them under a civilian system, many will be acquitted for lack of evidence. If we try them under a military system (which might not even be allowed under Geneva), we'd still have to find a place to incarcerate them.

Needless to say, this is a difficult situation. I am not sure how to answer any of these questions and thus I cannot profess to side with those who would close Gitmo or those who seek to keep it operational. The only thing this does prove, I believe, is that, considering the delicacy and difficulty of the situation, it would be unwise to move quickly towards any decision. There is absolutely no rush to close Gitmo - it has survived international scrutiny since 9/11. I would be wary of huge political moves made in haste.

~JSK

Tax and Spend Liberals

No need for much text in this post, I'll let the picture do the talking.





~JSK
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So there is indeed some truth to this cartoon and I realize what it is trying to say, but I hope that people realize that this is a very simplistic explanation of the past budget deficits. I could just as easily make a simplistic analysis of who controlled congress over those periods (and the branch with the most control over the budget). The Democrats controlled the House for all of Reagan’s term and the Senate for half of it. They controlled Congress during all of Bush I’s term. The Republicans then controlled congress for 6 out of the 8 years of Clinton’s terms, including all of the years of surpluses. Lastly, even with Bush II, the years where the deficit grew from the previous year, Congress had Democrat control. The first two, the Dems had the Senate, and in the last two, where they had both houses, the deficit has ballooned from $160 billion to a projected $1.1 to $1.5 trillion deficit for this budget year. But this is too simplistic as well.

But first, just a side note. Partially because of horrible fiscal stewardship ont he part of the Republicans in recent years, the Democrats have successfully been able to turn the meaning of "fiscal responsibility" to one regarding only deficits and not rampant spending in of itself. So deficits are not even necessarily as good of a measure of being “fiscally conservative,” as total spending is. Deficits after all are not a measure of spending growth or how the money is spent, but simply the gap between inlays and outlays.

But getting back to the main point, lets briefly look at the dynamics that existed under all these administrations. First, Reagan was unable to get the budgets he wanted. Though the Southern Democrats went along with his tax cuts, they wouldn’t go along with his spending cuts, or at least not enough of them to balance the budget. Without that block in the House, he could not get anything through it. Also, in order to cut many programs, 60 votes in the Senate would have been required, which he usually did not have. Furthermore, many Republicans didn’t want to cut certain programs either because any given spending program has its entrenched interests. Had Reagan actually gotten the budgets he sent to Congress, there would have been a cumulative budget surplus by the end of his term. Now proposed budgets always get altered and it is likely Reagan didn't expect those to actually pass, but it does show that he was trying to reduce spending much more then he was able to do. Now some also say, “well wait, Reagan drastically increased military spending.” Well this is true, but his increase really only brought defence spending back in line as a percent of GDP with what had been the Cold War average. Defense spending had been falling through the Ford and Carter years being replaced by domestic spending.

Next was Bush I. He had a very hostile Congress that would not go along with any substantial spending cuts at all. But regarding the deficit, he got hit with a recession. Because of the social safety net and the progressive income tax system, a recession naturally reduces tax revenues while at the same time increasing outlays. These were all programs already in place and not the direct hand of Bush. In the end, he compromised with the Democrats and raised taxes, because he could not get cuts, and the rescinding of his famous “read my lips, no new taxes” pledge ultimately contributed to him losing his reelection (furthermore, Bush I was not nearly into the small government thing as Reagan was... remember “Voodoo Economics”, and therefore was much more willing to go along with the Congressional Democrats in the first place.)

Clinton, started out as a big tax and spend liberal as the title in the cartoon states. He raised taxes and then tried to get through his massive universal healthcare program. However, a combination of the program's high cost, the complexity of it and the political infighting within the Democrat party, he didn’t get this through. The Republicans then took the Congress and at this point they actually believed in restricting spending. They also had the partisan incentive to go against Clinton backed spending. But also at this point, Clinton then began to rule as a moderate, likely out of political necessity, and encouraged by his Treasury Secretary Rubin, who is obsessed with budget deficits, stopped pushing for more spending. The Republicans essentially made policy for most of the decade. Even think of the major achievements of the Clinton administration, NAFTA, welfare reform, capital gains tax cuts, balanced budgets... these were all the Republican Party platform issues in 94 and 96. Furthermore, he spent most of his second term using his political capital to blunt the various sex allegations. Clinton also had the short term benefit of the stock bubble, an unsustainable period of economic growth that yielded a temporary benefit, but led to the recession to follow in 2001. And just as a recession naturally reduces revenues and increases outlays, the opposite is true during a boom time. The late 90's saw the largest percent of GDP collected as tax revenue since WWII. This was why Bush II was so attement about putting in place a tax cut durring his 2000 campaign and why even Gore was advocating a smaller tax cut.

Bush II is where this cartoon has the most truth, because the administration has actively pushed for massive increases in spending over its tenure, whether it be Medicare D, No child left behind, farm subsidies, Homeland Security, etc. However, even this is not the full story. He got hit with the 2001 recession and 9-11, both of which reduced tax revenues and increased outlays. Now we have a massive deficit with all the bailouts, but these have been quite bipartisan, or at least Bush and the Congressional Democrats.

So this is still a very brief overview of the various administrations that doesn't do any of them justice; however, in general, this begins to look at the more complex dynamic.

-EJB

How Capitalism Gave Us Thanksgiving

So the rather unique American holiday of Thanksgiving comes upon us tomorrow and I wish all our readers a happy and tasty one. Though the official holiday itself began during the Civil War period as Lincoln declared a day of thanksgiving in 1863, we are all familiar with the origins being traced back to the Pilgrims in the Plymouth Colony. As every school child knows, a great feast of celebration was had after the abundance of a large harvest, which followed the previous long period of suffering in the new wilderness.

The story that few school children will ever know however, is why it took until 1623 to have this abundant harvest, three years after the colonists first landed in 1620 (there was a celebration in 1621, celebrated by the original survivors after making it the first year, but the first feast of abundance that we associate the turkey and the other mythological imagery with was in 1623). By the short simple answer, the Pilgrims for the first two years suffered under socialism and in 1623 were saved by capitalism. The original colony was set up as a communal farming community. Every man worked on common fields and all produce was shared collectively. The result was the tragedy of the commons. Because all of the benefit of an individual's work would be shared but all of the cost of one's work must be assumed alone, the incentive to work is greatly diminished. One begins to free ride off of others. However when every worker thinks this way, total output rapidly declines and harms the greater whole.

Seeing these results over the first two seasons, reforms were made. The colonial governor, William Bradford, wrote in his diary on this problem:

So as it well appeared that famine must still ensue the next year also, if not some way prevented. Therefore [the colonists] began to think how they might raise as much corn as they could, and obtain a better crop than they had done, that they might not still thus languish in misery. At length after much debate of things, [I] (with the advice of the chiefest among them) gave way that they should set corn every man for his own particular, and in that regard trust to themselves. And so assigned to every family a parcel of land.

And there for the first time, the colonists of Plymouth had private property rights. Each family was solely repsonsible for the upkeep of its land, but in return was able to keep the produce from it. The result was a massive increase in farming output that season as every man had an incentive to work hard and efficiently. Bradford further wrote:

This had very good success...for it made all hands very industrious, so as much more corn was planted than otherwise would have been. By this time harvest was come, and instead of famine, now God gave them plenty, and the face of things was changed, to the rejoicing of the hearts of many.

A very similar pattern also happened in Jamestown, where the original settlers were largely indentured servants, and their work was split communally with the colony. After the first 500 or so settlers largely perished, the new governor Thomas Dale abandon the indentured servant model and gave each family a parcel of land. The result was the thriving of the colony. Famous settler John Rolfe stated that once men were granted property they went about, "gathering and reaping the fruits of their labors with much joy and comfort.” The settlers went from bartering for food from the local natives to selling excess food.

So this Thanksgiving when you're feasting on turkey and other delights, omong other things, make sure you take a little time to be thankful for property rights, free markets and capitalism. :)

-EJB


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Leave it to EJB to bring free market theory into Thanksgiving festivities. I only have a few random thoughts to add to this one.

First, the "tragedy of the commons" is a questionable theory; and I emphasize the word "theory" because there are no great societal examples of this phenomenon. The author of the phrase (which served as the title of his article) was Garrett Hardin, professor of sociology at California. His article purports to base the "tragedy of the commons" theory on the old English "Commons," communally owned pastures where shepherds would bring their sheep to graze. These "Commons" were eventually replaced by private farms. Hardin would have you believe that the downfall of the communally owned pastures was an inevitable consequence of letting property be owned communally in the first place. New research confirms (or, at least, strongly supports the idea) that the Commons fell because of other reasons.

Besides the complete lack of empirical evidence, the "tragedy of the commons" theory, upon closer inspection, seems to be flawed rationally as well. Hardin premised his theory on the assumption that if a resource were left to communal rule, and thus not protected by individual property rights, there would be a rush by individuals within the community to use all of that resource for themselves - thus destroying the resource and the environment. This article, by Ian Angus, notes that that assumption appears slightly myopic:

"Contrary to Hardin's claims, a community that shares fields and forests has a strong incentive to protect them to the best of its ability, even if that means not maximizing current production, because those resources will be essential to the community's survival for centuries to come."

A community, just like any individual person, can foresee, comprehend and adequately prepare for future scarcity.

My last point is more social than economic. It is a sad fact of history that "tragedy of the commons" theory - or, more broadly, the Lockean theory of private property supported by "tragedy of the commons" thinking - has been used to forcibly displace and destroy indigenous populations and civilizations. There is no better time to consider this embarrassment than Thanksgiving. The brutal oppression of the Colonists over Native Americans was fueled and subsequently "justified" by theories of private property. This is made clear by a conveniently on-point quote from Chief Justice John Marshall in his opinion in the case of Johnson v. McIntosh (wherein the Court held that private citizens could not buy land from Native American tribes):

"But the tribe of Indians inhabiting this country were fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest. To leave them in possession of their country, was to leave the country a wilderness..."

Thus, while EJB suggests being thankful for Locke, Friedman and property rights this Thanksgiving, I suggest that those with the good fortune of being descendants of the peoples who have most benefited from the imposition of private property rights consider themselves lucky and give thanks - descendants of the conquered (the few left, of course) might not consider themselves as lucky.

~JSK

On Enemy Combatants, International Law and the War on Terror

Federal district court judge Richard Leon ruled today that President Bush must release five detainees currently held at Guantanamo Bay. One of the five prisoners is Lakhdar Boumediene, whose case prompted the Supreme Court to allow federal courts to review whether detainees captured during the "war on terror" were being properly held. Judge Leon's ruling is the first of its kind and it is a resounding critique of Bush's handling of the "war on terror." To sum up, Judge Leon ruled that the five detainees were not properly designated "enemy combatants" because the evidence the Government used to detain them was a single, unidentified source. Finding this evidence to be entirely too flimsy, Leon ordered their release. Because I agree with the outcome of the decision, but disagree with the rationale, you may consider this post my concurring opinion.

Judge Leon did the right thing by ordering the release of the prisoners. However, by ruling that the Government had not properly designated Boumediene and his friends as "enemy combatants," Judge Leon is assuming that there can be properly designated "enemy combatants" in the "war on terror." This is a fundamental misreading of the international laws of war (as governed by the Geneva Conventions - treaties which the United States is a party to). In the interest of brevity, I will limit my argument to its fundamentals, so forgive me if it seems a bit choppy and underexplained.

First, Article I, Section 8, Clause 10 grants Congress the power to "... [D]efine and punish piracies and felonies committed on the high seas, and offenses against the law of nations;" Thus, constitutionally, it is the Congress that should be defining the criteria of "enemy combatant" status - not the Executive. However, according to the Supreme Court in Hamdi v. Rumsfeld, Congress delegated this authority to the President when it passed the AUMF immediately following 9/11. So far so good. Except that there's this wonderful little line of cases espousing a principle of constitutional interpretation called the "Charming Betsy rule." This rule dictates that U.S. statutes should not be read to violate established international law of war principles. This makes sense, our very Constitution was shaped and informed in light of international law. Plus, the policy of promoting comity between nations is one of the leading justifications for obeying international law principles - even when dictating domestic law. Thus, it is vital that our Constitution and the statutes which flow from it are interpreted according to the international standards that are accepted by the global community (this is especially true when considering jus in bello rules, which have remained unchanged since the time of Thomas Aquinas!).

So we turn to the Geneva Conventions to decide what to do about detaining "enemy combatants." Articles Three and Four of the Conventions dictate the law of war rule of "distinction," that is, in "armed conflict" there are civilians and combatants. Combatants are defined as those who belong to an enemy military and/or take up arms in "direct hostilities" against another warring nation (civilians are anyone else). Does this cover terrorists? It might appear to, since terrorists do seem to act in "direct hostility" to the United States. Here's the catch that the Supreme Court missed - Articles Three and Four of Geneva also divide "armed conflict" into two types: international and non-international. International armed conflict is what you think of when you think of war: State A vs. State B, WWI and WWII. Non-international conflict is defined as a nation vs. a non-national organization or group. This would include civil wars, rebellions and international criminal organizations. Thus we have the category that al Qaeda falls into; clearly, the "war on terror" is a non-international armed conflict according to international law of war principles. Finally, the most important fact to take note of: non-international armed conflict is not covered by Articles 3 and 4. It is covered by Common Article 3 and various Additional Protocols. These documents do not recognize the existence of the class of "enemy combatant" in non-international warfare. This is key! There's no such thing as an "enemy combatant." Does this mean we cannot detain terrorists? Of course not. The law of war contemplates (and commands) that in non-international warfare, detainees are subject to the domestic law of the captors! Thus, terrorists should (indeed, must) be tried in civil courts, like any other criminal. Amazingly, the Supreme Court has recognized that the "war on terror" is indeed a non-international armed conflict (it did so in a case called Hamdan v. Rumsfeld - not to be confused with Hamdi). However, it failed to make the necessary connection that "enemy combatant" status does not exist in the "war on terror."

Think about it, what happened to Timothy McVeigh, the Atlanta Olmypic bomber and the captured 9/11 terrorist plotter? They were all tried in civil courts for the domestic crimes of conspiracy to commit murder and murder. This is the correct answer to the question of captured terrorists. Sadly, while getting the result correct, Judge Leon failed to recognize the right way to get there. He ignores or does not realize the unconstitutional nature of detaining civilians in military courts. I trust that other district court judge's will see the light and follow the principles of Charming Betsy, Hamdan and the Geneva Conventions.

~JSK

This Would Be Even Funnier If It Weren't So True

-EJB


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"America needs the money hole!"
"I love the money fires."

Brilliant, yet tragic...though the idea of people arguing over whether the free market can discover the best way to destroy money warms my heart.

~JSK